POLICIES TO FORMALIZE PAID DOMESTIC WORK IN LATIN AMERICA AND THE CARIBBEAN

POLICIES TO FORMALIZE PAID DOMESTIC WORK IN LATIN AMERICA AND THE CARIBBEAN Regional Office for Latin America and the Caribbean

POLICIES TO FORMALIZE PAID DOMESTIC WORK IN LATIN AMERICA AND THE CARIBBEAN

Copyright International Labour Organization 2016 First edition 2016 Publications of the International Labour Office enjoy copyright under Protocol 2 of the Universal Copyright Convention. Nevertheless, short excerpts from them may be reproduced without authorization, on condition that the source is indicated. For rights of reproduction or translation, application should be made to ILO Publications (Rights and Licensing), International Labour Office, CH-1211 Geneva 22, Switzerland, or by email: pubdroit@ilo.org. The International Labour Office welcomes such applications. Libraries, institutions and other users registered with a reproduction rights organization may make copies in accordance with the licenses issued to them for this purpose. Visit www.ifrro.org to find the reproduction rights organization in your country. LEXARTZA, Larraitz; CHAVES, María José and CARCEDO, Ana. Policies to formalize paid domestic work in Latin America and the Caribbean. Lima: ILO, Regional Office for Latin America and the Caribbean, 2016 48 p. Domestic work, wages, workers rights, collective bargaining, Latin America, Caribbean ISBN: (printed) ISSN: (web pdf) Published also in Spanish: Políticas de formalización del trabajo doméstico remunerado en América Latina y el Caribe. ISBN: 978-92-2-331090-5 (print) ISBN: 978-92-2-331091-2 (web pdf) ILO Catalogue Information The designations employed in ILO publications, which are in conformity with United Nations practice, and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the International Labour Office concerning the legal status of any country, area or territory or of its authorities, or concerning the delimitation of its frontiers. The responsibility for opinions expressed in signed articles, studies and other contributions rests solely with their authors, and publication does not constitute an endorsement by the International Labour Office of the opinions expressed in them. Reference to names of firms and commercial products and processes does not imply their endorsement by the International Labour Office, and any failure to mention a particular firm, commercial product or process is not a sign of disapproval. Publications of the ILO can be obtained in leading bookstores and local ILO offices or by request from: ILO Publications, International Labour Office, CH-1211 Geneva 22, Switzerland. Catalogues or lists of new publications can also be requested from the aforementioned addresses or by e-mail: pubvente@ilo.org or biblioteca_regional@ilo.org. For more information, visit our website: www.ilo.org/publns or http://www.ilo.org/ americas/publicaciones (regional website). Printed in Peru

POLICIES TO FORMALIZE PAID DOMESTIC WORK IN LATIN AMERICA AND THE CARIBBEAN International Labour Organization Regional Office for Latin America and the Caribbean

4 Acknowledgements The Regional Office of the ILO would like to thank María José Chamorro (gender specialist in the ILO Office for Central America, Haiti, Panama and the Dominican Republic) and María Arteta (assistant director for the ILO Office for the Andean Countries) for overseeing the preparation of this report. The Regional Office also would like to express its gratitude to the following colleagues for their helpful comments to preliminary versions of this report: Fabio Durán (Social Protection Department SOCPRO), Claire Hobden and Janine Berg (Inclusive Labour Markets, Labour Relations and Working Conditions Branch INWORK), María Elena Valenzuela and María Galloti (Labour Migration Branch MIGRANT), Bolívar Pino and Rigoberto García (Labour Analysis and Information System for Latin America and the Caribbean SIALC/Panama), Xavier Estupiñán (ILO Project Office for Ecuador), Laura Norato (ILO Project Office for Colombia), Rodrigo Mogrovejo (ILO Project Office for Bolivia), Eduardo Rodríguez and Luis Más (ILO Office for the Andean Countries), José Francisco Ortiz (Subregional Office for Central America), Alejandra Beccaria and Kristen Sobeck (ILO Country Office for Argentina), Andrés Marinakis (ILO Subregional Office for the Southern Cone of Latin America), Paula Robinson and Shingo Miandake (ILO Office for the Caribbean Countries), and Claudia Ruiz and Juan Chacaltana (ILO Regional Office for Latin America and the Caribbean). Additionally, the Regional Office of the ILO would like to thank Alma Espino, an external collaborator, who gathered information from the countries in the Southern Cone of Latin America.

Policies to formalize paid domestic work in Latin America and the Caribbean 5 Contents Foreword 7 Policies to formalize paid domestic work in Latin America and the Caribbean 9 1. Characteristics of domestic work in Latin America and the Caribbean 11 1.1 Educational level of domestic workers is on the rise 13 1.2 An undervalued occupation: the wage gap 13 1.3 Access to social security is a pending issue in all countries 13 2. Paid domestic work: a job that contributes 16 2.1 A review of legislation to regulate domestic work in Latin America and the Caribbean 18 2.2 Legal strategies for recognizing the rights of domestic workers 19 2.3 Advances and pending issues of legal reforms 20 2.4 Dialogue between the legislation that regulates domestic work and migration legislation: a top-priority issue 23 3. Strategies for formalizing domestic work beyond legal reforms 25 3.1 Actions to guarantee the right of domestic workers to social protection 25 3.2 Income security: minimum wage 28 3.3 New strategies for inspections of private households 30 3.4 Incentive policies for contribution to social security and other contributions associated with the employment relationship 33 3.5 Organization of domestic workers and collective bargaining 34 3.6 Public awareness campaigns and employment advisory services 36 3.7 Multidimensional strategies to formalize domestic work 37 4. Conclusions and recommendations 40 5. References 43 6. Legislation and regulations consulted 46

Policies to formalize paid domestic work in Latin America and the Caribbean 7 Foreword Domestic work is one of the occupations most affected by informality in Latin America and the Caribbean. It is estimated that around 18 million people are engaged in domestic work in the region, of which 77.5% are in the informal economy. Low rates of affiliation to social security, low incomes, difficulties in inspection and a lack of mechanisms for collective bargaining reduce the protection available to this sector and result in severe defecits in decent work. Out of all domestic workers, 93% are women, making this type of work one of the most important for women in the region. In fact, domestic work and care work reproductive work has historically been assigned to women and performed at home without any remuneration, which is one of the reasons for its low social value and difficult working conditions. In the current context, marked by significant participation of women in paid work and significant demographic changes in the composition of families, domestic work remains essential to meet the needs of care work in households. Therefore, the formalization of domestic work must be understood in the context of the broader discussion on public policies for care of dependants and policies to promote gender equality in the working world. On both topics, this report will reflect on the centenary initiative of the ILO on women at work. This report is part of the Programme for the Promotion of Formalization in Latin America and the Caribbean (FORLAC), as well as efforts to promote the implementation of Recommendation 204, Recommendation on the transition from the informal economy to formality, in the region. Despite the high rates of informality in the domestic work sector, recent decades have shown positive changes, with a significant reduction in informality. This report collects the measures being taken in the region to promote formalization of paid domestic work and the results of these measures so far. Progress has largely been made in the reform of outdated regulations which used to place workers in this sector at a disadvantage. The approval of Convention No. 189 on decent work for women workers and domestic workers and its subsequent ratification in 12 countries in the region further boosted efforts for reform which had started years before, and resulted in regulations with greater guarantees in many parts of the region. Legal reforms to ensure equal rights with other workers require specific measures to ensure that they are applied in practice. This report shows that countries that have had more extensive and faster results are those that have opted for multidimensional strategies. These strategies have put access to social security at the center of their interventions, but have complemented this with initiatives to improve income, boost inspection, and create different incentives, by guaranteeing collective bargaining or promoting the rights of workers. The ILO hopes that this report, which summarizes the measures taken so far, stimulates discussion on the challenges we face as a region in formalizing domestic work and guides country strategies in the future. José Manuel Salazar-Xirinachs ILO Regional Director for Latin America and the Caribbean

Policies to formalize paid domestic work in Latin America and the Caribbean 9 Policies to formalize paid domestic work in Latin America and the Caribbean Article 1 of Convention 189 defines domestic work as work performed in or for a household or households. This work includes cleaning the house, cooking, washing and ironing clothes, taking care of dependent individuals (children, the elderly and people with disabilities), gardening, guarding the house, driving for the family, and even taking care of household pets. 1 Due to its characteristics, this job differs from other occupations. For example, a domestic worker may work on a full-time or part-time basis; may be employed by a single household or by multiple employers; and may or may not reside in the household of the employer (ILO 2011). Precisely because of those characteristics, and the fact that the job is performed mainly by women, paid domestic work represents approximately 10 per cent of informal employment in Latin America (ILO 2015a: 12) 2. In an effort to change this, the International Labour Organization (ILO) implemented the Programme to Promote Formalization in Latin America and the Caribbean (FORLAC). One strategic component of this programme is the generation and dissemination of knowledge concerning the transition to formal employment of paid domestic work. This report forms part of this effort as it systematizes information on the situation of domestic workers and on key measures countries in the region have taken to formalize and improve working conditions in the domestic work sector. Section 1 of this report looks at the characteristics of domestic work in terms of gender, educational level, wages, access to social security and the participation of migrant workers. Section 2 describes the main contributions of ILO Convention 189 and Recommendation 201 in formalizing domestic work, and reviews the different strategies used by countries to do so. To this end, the authors carried out an exhaustive review of labour law in 21 countries in Latin America and the Caribbean (including labour codes and other relevant legislation) 3. Section 3 of this report systematizes the different strategies countries have 1 ILO (2011): 1. 2 The special characteristics of domestic work make it difficult to apply the standard criteria used to estimate informal employment within the informal sector (legal organization of the production unit; accounting records of transactions of the production unit; record of compliance with the administrative provisions established by law). Domestic work is not considered to be in the informal sector or in the formal sector, since the households that use these services are final consumers and do not produce goods and services for the market. Due to these considerations, informality in the domestic work sector is defined by taking into consideration job characteristics, where one criterion is access to social security resulting from the employment relationship. 3 The countries are: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Trinidad and Tobago, Uruguay and Venezuela.

10 applied to formalize domestic workers beyond the formal changes reflected in the legal framework. This section is based on assessment reports, accountability documents and other materials prepared by Ministries of Labour. Proceedings on compliance with Convention 189 were also consulted, as were national, sub-regional and regional research on the subject. Finally, the report offers conclusions and recommendations to build upon efforts to formalize paid domestic work in Latin America and the Caribbean.

Policies to formalize paid domestic work in Latin America and the Caribbean 11 1. Characteristics of domestic work in Latin America and the Caribbean Domestic work is one of the occupations with the highest levels of informal employment. The ILO estimates that some 18 million people are employed in the sector, which is the equivalent of approximately 7 per cent of all employed persons in the region 4. In 2013, the informal employment rate among domestic workers in Latin America was 77.5 per cent. In other words, nearly eight of every 10 domestic workers had an informal job 5. However, this rate declined by 2.6 percentage points between 2009 and 2013, a trend that has occurred in other sectors (Figure 1). FIGURE 1. Latin America (14 countries): Rate of non-agricultural informal employment by status in employment, 2009-2013 (percentages) 100 80 60 40 20 Own-account Domestic work Wage employment, private sector (includes employers) Wage employment, public sector 0 2009 2011 2012 2013 Source: ILO (2015a). Note: Calculated for 14 countries. Employed population ages 15 and over. This reduction is due to several factors, including specific measures adopted by the countries to formalize this activity. This section briefly reviews the main characteristics of domestic work and analyzes the different initiatives implemented to reduce informality in diverse areas, including social security, minimum wages, labour inspections, unionization and collective bargaining. The ILO estimates that 37 per cent of the world s domestic workers are employed in Latin America. Latin America and Asia account for the largest share of domestic workers and these regions have also experienced the largest increase in the number of domestic workers in recent decades (ILO 2013a). 4 Household survey data on domestic work for the Caribbean was not available during the elaboration of this report. 5 ILO (2015a): 11.

12 Women account for 93 per cent of domestic workers in Latin America. This occupation accounts for a significant share of women s employment. Although its importance has diminished from 18.6 per cent in 2000 to 14.3 per cent in 2013, one of every seven employed women in Latin America still worked as domestic workers (ILO 2014a). FIGURE 2. Proportion of domestic workers as a share of total employed persons by sex, 2013 (percentages) 18 15 17.0 15.3 14.0 13.1 17.1 13.3 12 9 6 3 0 7.2 0.2 6.4 2.9 7.1 10.0 8.4 4.2 4.0 6.3 5.7 8.4 3.6 8.4 10.1 7.8 9.3 4.3 4.3 3.7 4.3 8.9 10.3 4.8 4.9 0.2 0.8 0.3 0.4 0.7 0.8 0.3 0.7 0.3 0.3 0.7 0.9 1.0 0.8 1.0 0.2 8.3 6.8 3.2 6.6 3.6 1.5 0.1 Argentina Bolivia Brazil Chile Colombia Costa Rica Dominican Republic Ecuador El Salvador Guatemala Honduras Mexico Nicaragua Panama Paraguay Peru Uruguay Venezuela Total Women Men Source: ILO (2014a). Notes: Data for Bolivia correspond to 2011 and data for Nicaragua correspond to 2012. Specific groups of women, such as migrant workers, account for a large share of domestic workers. According to ILO estimates 6, migrants represent 17.2 per cent of all domestic workers. Within the group of migrant domestic workers, 73.4 per cent are women. The participation of migrant workers in paid domestic work varies significantly among countries and regions. The ILO reports that the highest concentration of migrant domestic workers is found in Southeast Asia and the Pacific (24 per cent of the world total), northern, southern and western Europe (22.1 per cent) and in the Arab States (19 per cent). People of indigenous and African descent are also overrepresented in domestic work. For example, in Brazil, on average, the share of women of African descent employed in domestic work is 10 percentage points higher than that of women of non-african descent. 7 In Chile, according to the 2013 National Socioeconomic Survey (CASEN), 8.7 per cent of domestic workers reported belonging to an ethnic group and 7.9 per cent of the total was from the Mapuche Nation 8. 6 (ILO 2015b: v). 7 DIESSE, 2006 cited in Valiente (2010): 16. 8 Sanches do Prado and Rangel (2014): 8.

Policies to formalize paid domestic work in Latin America and the Caribbean 13 1.1 Educational level of domestic workers is on the rise The educational level of domestic workers is improving. In 2013, 63 per cent had no formal education or had completed only primary school, versus 76.3 per cent in 2003. Likewise, the percentage of domestic workers with a secondary education increased by nearly 12 percentage points over the past decade, from 21.8 per cent in 2003 to 33.3 per cent in 2013 (ILO 2015c). 1.2 An undervalued occupation: the wage gap Domestic work is undervalued in terms of wages. Currently, in Argentina, Brazil, Costa Rica, the Dominican Republic, El Salvador, Nicaragua, Panama and Uruguay, domestic workers earnings are equal to or less than 50 per cent of the average of the employment income of all employed persons (ILO 2015c). This gap has narrowed over the past decade, however. Domestic workers earnings rose from the equivalent of 45.1 per cent of average earnings in 2003 to 51.1 per cent in 2013. Earnings gaps persist in the sector, even when compared with the average earnings of unskilled labour (see Costa Rica in Figure 3). FIGURE 3. Costa Rica: Relationship between the real minimum wage of domestic workers (DW) and of unskilled workers (UW), 2000-2014 160,000 160.0 2006 Colones per month 140,000 120,000 100,000 80,000 60,000 40,000 20,000 140.0 120.0 100.0 80.0 60.0 40.0 20.0 Relationship MWDW and MWUW 0 0.0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 Relationship MWDW MWUW Note: MWDW Minimum Wage for Domestic Workers. MWUW Minimum Wage for Unskilled Workers. Source: ILO (undated). 1.3 Access to social security is a pending issue in all countries Domestic work continues to be an activity with limited social security coverage given the gaps in legal and effective coverage in practically all countries. At the regional level, there

14 is no standardized information available on social security coverage of domestic work 9, although data from the ILO s Labour Analysis and Information System for Latin America and the Caribbean (SIALC) indicate that in 2013, pension system coverage, measured in terms of the proportion of domestic workers actively contributing to the system, was 28 per cent, well below the 47 per cent recorded for all employed persons (ILO 2015c). The information collected from institutional records and household surveys for a group of countries of the region reveals significant differences in the levels of contributory social security coverage in the domestic work sector (Figure 4). FIGURE 4. Latin America (12 countries): Contributory coverage of social security systems, last available year (percentages) 50.0 45.0 40.0 41.9 42.3 43.2 Percentage of coverage 35.0 30.0 25.0 20.0 15.0 10.0 5.0 0 0.1 1.9 4.4 7.2 10.1 10.8 12.7 15.5 25.5 Mexico El Salvador Bolivia Peru Paraguay Colombia Panama Costa Rica Argentina Ecuador Chile Uruguay Source: ILO (2016). Note: This figure differs from that published in the Feature Article of the 2015 Labour Overview (ILO 2015d), which was based on a preliminary version of the report on social protection of domestic work (ILO 2016). The differences correspond to methodological aspects and information sources. Coverage rates vary significantly. While some countries have achieved rates above 40 per cent, others fall below 10 per cent of the total. In practice, there are several explanations for the differences in effective coverage, including the mandatory or voluntary nature of coverage. Mexico and El Salvador are the only countries listed in Figure 4 that have voluntary coverage. They also have the lowest coverage rates. Voluntary coverage limits the effectiveness of efforts to expand social security coverage. Mandatory coverage is necessary but insufficient. Some countries with mandatory social security coverage also have low levels of effective coverage, which suggests that national practices and conditions exist that affect those levels, such as the contributory capacity 9 In some countries, coverage data for domestic work are overestimated given that the calculation includes social protection granted through systems unrelated to the condition of wage employment and through non-contributory programmes.

Policies to formalize paid domestic work in Latin America and the Caribbean 15 of employers and workers of the sector, the legal and institutional framework associated with the capacity to exercise control over contributions and evasion, the capacity of inspection services and the level of difficulty of registration and payment procedures (ILO 2016). One problem is that the design of social security systems frequently does not respond to the specific characteristics of the domestic work sector, particularly with regard to the limited contributory capacity and the existence of part-time work for one or several employers at the same time. The countries of the region with higher levels of contributory coverage, such as Uruguay and Chile, have adapted their social security systems to address special characteristics of the domestic work sector. Although contributory coverage is limited, many domestic workers have social security access through coverage not associated with wage employment. This situation is largely explained by the limited social security strategies and mechanisms available to guarantee contributory participation. The inclusion of domestic workers in social security systems through a category distinct from wage employment impedes these workers from accessing all social security benefits, frequently limiting medical care coverage. For example, it is estimated that in Costa Rica, contributory coverage of domestic workers is 15.5 per cent, but an additional 60 per cent of domestic workers have social security coverage in health through categories separate from their employment status, such as family insurance (spouses of a direct beneficiary) and voluntary insurance. This is clearly incomplete coverage since the mechanism excludes the economic benefits (for illness, maternity leave and unemployment, among others) granted to those directly insured. In summary, the data indicate that the design of social protection systems and the institutional capacity of these systems are relevant but not decisive for increasing social protection coverage of domestic workers. The policies and strategies for extending social security coverage should be viewed as part of a set of policies designed to promote formal employment (ILO 2016).

16 2. Paid domestic work: a job that contributes Domestic work makes a valuable contribution to the sustainability of the economies of countries. Some of these contributions are tangible, for example, it increases the possibility that men and women can be gainfully employed outside of the home. But there are also less tangible contributions, such as preventing gender gaps from increasing by making it easier for women mainly to be employed, study and engage in different activities by delegating household chores and the care of dependent individuals to others, principally other women. Domestic work also plays a key role in the international division of labour in a globalized world given that a growing number of high- and middle-income countries depend on the migration of women from developing countries to assume this work (Pérez Orozco 2009: 9 and Durin et al. 2014: 30-31). According to recent ILO data, 74.7 per cent of migrant domestic workers are employed in high-income countries, as compared with 11.7 per cent in middle-income countries, 11.3 per cent in low middle-income countries and just 2.4 per cent in low-income countries (ILO 2015b: iv). Since 2009, given the global interdependence between domestic work and other sectors of the economy, and the fact that this activity is differentiated in the labour law of countries, the ILO has promoted the adoption of an international standard to protect these workers. In 2011, the Domestic Workers Convention was adopted at the International Labour Conference (No. 189).

Policies to formalize paid domestic work in Latin America and the Caribbean 17 BOX 1. Convention 189 and Recommendation 201 on domestic workers This Convention was adopted at the ILO International Labour Conference of 16 June 2011 for the purpose of protecting the labour rights of domestic workers. Key principles of the Convention include: The right to a clear, easily understandable contract that defines terms and conditions of employment. This contract should preferably be written (Article 7 and ILO, undated). The right that the work day shall be duly established, with daily and weekly rest periods, holidays, overtime pay and the conditions for which they must be on call (Article 10 and ILO, 2011). The right of domestic workers to a minimum wage paid directly in cash and at regular intervals at least once a month (Articles 11 and 12, and ILO, 2011). With respect to in-kind payments, the Convention states that they will be only for a limited proportion of the remuneration of domestic workers in the form of payments in kind provided that measures are taken to ensure that such payments in kind are agreed to by the worker, are for the personal use and benefit of the worker, and that the monetary value attributed to them is fair and reasonable. Accordingly, the items domestic workers require for their jobs (uniforms, protective equipment, cleaning products, etc.) should be considered tools that the employer must provide at no additional cost (Article 12, and ILO, 2011). Each Member shall take appropriate measures, in accordance with national laws and regulations and with due regard for the specific characteristics of domestic work, to ensure that domestic workers enjoy conditions that are no less favourable than those applicable to workers generally with respect to social security protection, including with respect to maternity. (Article 14 and ILO, 2011). With respect to child labour, the countries shall establish a minimum age for employment in domestic work and guarantee that workers under age 18 can continue with their education (Article 4 and ILO, 2011). The Convention establishes that domestic workers who live in their employers homes (live-in) have a right to privacy and to leave the premises during rest periods or during annual leave (Articles 6 and 9, and ILO, 2011). The Convention stipulates that migrant domestic workers have the right to an employment contract before traveling to the destination country. They also have the right to keep their identity and travel documents. The countries of origin and destination are encouraged to establish bilateral agreements to ensure full compliance with this Convention (Articles 8 and 9, and ILO, 2011). Conditions are also established for the operation of private employment agencies, for which Members shall have regulations for their operation and shall have a mechanism for investigating complaints of rights violations made by domestic workers (Article 15, and ILO, 2011). The Convention also calls for effective and accessible complaint mechanisms and the demand for justice through the intervention of justice tribunals. Members shall also establish clear labour inspection measures (Article 17). Recommendation 201 complements and defines concrete measures to implement the proposals established in Convention 189. Between 2012 and 2015, 12 of the 21 countries analyzed in this study ratified Convention 189: Argentina, Bolivia, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Guyana, Nicaragua, Panama, Paraguay and Uruguay. Source: ILO.

18 In order to further develop this agenda, the ILO made a commitment to promote the formalization of domestic work worldwide during the period 2012-2015. This agenda is based on five points designed to build capacities, strengthen national institutions, facilitate the organization and representation of domestic workers and their employers, promote the ratification and support the implementation of Convention 189 and Recommendation 201, and promote social and attitudinal changes in individuals to improve the labour conditions of domestic workers (ILO 2011). In this context, although promoting the ratification of Convention 189 and Recommendation 201 is not the only objective, it does provide a solid base in the process of formalizing the domestic work sector. 2.1 A review of legislation to regulate domestic work in Latin America and the Caribbean 10 Since the first half of the twentieth century in Latin America, major efforts have been underway to promote and guarantee fundamental labour rights (Bronstein 1998). Nevertheless, in the domestic work sector, these efforts have lagged behind for several reasons. One was associated with the colonial legacy and the association of this occupation with servitude and slavery 11. Additionally, as it was an occupation associated with tasks traditionally and culturally assigned to women, it received little attention as a job and as a contribution to the economies of households and countries (Pérez Orozco 2009: 6). The first laws regulating domestic work established differentiated systems that granted fewer rights and guarantees to those working in the sector. This was achieved through different strategies: in Argentina, specific laws were enacted whereas in Peru a decree was passed. Nicaragua, Costa Rica, Panama, the Dominican Republic, Bolivia, Chile, Guatemala, El Salvador, Honduras, Ecuador and Venezuela created special sections for domestic work within their labour codes. Finally, Colombia and Brazil defined exceptions in the scope of labour rights established in the Labour Code (Colombia) and in the Federal Constitution (Brazil). These differentiated regulations resulted in fewer labour rights for domestic workers and favoured informal employment (Milano-Mijangos et al. 2012: 34). Beginning in 1972, Brazil launched a series of legal reforms in an effort to close gaps and to gradually give domestic workers the same rights as other workers (ILO 2015e: 7). Several other countries implemented this process beginning in the 2000s. It was not until 2011, however, with the adoption of ILO Convention 189 concerning domestic workers, that this trend toward reform strengthened, with a growing number of countries joining this effort and with the expansion of reforms in those already working to guarantee equal labour rights for domestic workers. 10 Three Caribbean countries were selected: Guayana, Jamaica and Trinidad and Tobago. 11 See Lerussi (2008), cited in Carcedo et al. (2011): 34 and Dunn (2015):19. In the seventeenth and eighteenth centuries, domestic workers were known as house slaves. (Dunn, 2015:19).

Policies to formalize paid domestic work in Latin America and the Caribbean 19 Currently, advances vary by country. For example, Brazil and Venezuela, which have not yet ratified the Convention, have made positive changes in their legal systems. Other countries lag behind in these efforts, despite having ratified the Convention, and still others have neither reformed their legal framework nor ratified the Convention. In fact, some articles of existing laws could be identified as remnants of the former servant system. Despite these contradictions between the rights framework promoted by the ILO and national legislation, the trend toward reform that began in the 2000s has continued and is gradually strengthening in the region. 2.2 Legal strategies for recognizing the rights of domestic workers In accordance with their social, historical and political context, countries have taken different paths to promote labour reforms to benefit domestic workers. Some regulations were updated through constitutional reforms. In other cases, the courts have mandated the adaptation of laws. However, most of the countries have opted to reform their labour codes or to draft specific legislation. In 2015, Brazil was the only country in this study to have implemented a constitutional reform. In 2013, the country adopted the Draft Bill for a Constitutional Amendment for Domestic Workers (Constitutional Amendment N 72). This was because Brazil was the only country that had Constitutional provisions that recognized fewer rights for domestic workers. In Colombia, the Constitutional Court established through Ruling C-372 in 1998 that the workday of live-in domestic workers could not exceed 10 hours (Ministry of Labour 2012: 12). Likewise, in Costa Rica, through Resolution 2007-3043 of 2007, the Constitutional Court recognized the right of domestic workers to a full day of rest weekly, to national holidays and to 15 days of annual leave. As mentioned, several of the countries have created specific laws. Bolivia adopted the Law to Regulate Paid Household Employment in 2003 (Law N 2450). That same year, Peru adopted the Law of Domestic Workers (Law N 27986). In 2006, Uruguay adopted the Law of Domestic Work (Law N 18.065). In 2013, Argentina enacted the Law of the Special Employment Contract Programme for Staff of Private Homes (Law N 26844). Most recently, in October 2015, Paraguay passed Law N 5407 on Domestic Work. In terms of labour code reforms, noteworthy examples include that of Costa Rica in 2009 through Law N 8726, and of Chile in 2014 through Law 20786, which modifies the workday, rest and composition of remuneration of domestic workers of private households and prohibits the requirement to wear uniforms in public places. Ecuador also implemented reforms to its labour law that have had a favourable impact. The 2012 adoption of the Organic Law for the Defense of Labour Rights modified a series of articles of the Labour Code, which includes domestic workers as well as other workers.

20 2.3 Advances and pending issues of legal reforms To varying degrees, the legal strategies described above have adapted legislation to reflect the contents of Convention 189 and Recommendation 201. Below are key advances that the countries analyzed have achieved in terms of the different sections of the Convention. Right to a written contract In most of the countries studied, domestic workers are hired via a verbal agreement 12. In 2015, only Argentina, Brazil, Chile, Costa Rica, Ecuador, Mexico and Paraguay required written contracts. Bolivia requires a written contract only when the employment relationship extends beyond one year. Right to a clearly defined workday, rest periods and vacations Costa Rica and most of the countries of South America have defined full-time employment in the domestic work and other sectors, although hours vary by country: 48 hours in Argentina, Costa Rica, Guyana, Paraguay and Peru 13 and Bolivia and Colombia 14 ; 45 in Chile 15 ; 44 in Brazil, Trinidad and Tobago and Uruguay; and 40 in Ecuador, Jamaica and Venezuela 16. Some countries of the region lag behind in terms of regulation of the sector, however. In the Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Nicaragua and Panama, the workday of domestic workers has not been regulated and only minimum rest periods have been established, which range from nine to 12 hours. In some countries, working hours differ depending on whether the domestic worker is live-in or live-out. In Colombia, although the number of weekly hours defined is similar for all domestic workers, live-in workers may work up to 10 hours per day. In Bolivia, while the normal workday is eight hours, live-out workers may work up to 10 hours per day. Finally, in Chile, live-out workers do not have an established workday. Chilean law also establishes a daily rest period of at least 12 hours. With respect to weekly rest periods, most of the countries recognize the right to at least one day per week. Bolivia, Brazil, Chile, Colombia, Costa Rica, El Salvador, Guyana, Honduras, Jamaica, Nicaragua, Panama, Paraguay 17, Peru and Trinidad and Tobago grant one day; Argentina, the Dominican Republic, Mexico and Uruguay mandate oneand-a-half days; and Ecuador and Venezuela, two days. In Ecuador, weekly rest periods 12 Article 7 of Convention 189 states that contracts should be written whenever posible. Many countries of the region do not require written contracts for domestic work, but this does not necessarily reflect a gap with other sectors since their labour laws allow for verbal or written employment contracts in other sectors. This is the case of Colombia, the Dominican Republic, Nicaragua, Peru and Uruguay. Other countries do mandate written contracts for most occupations but exempt domestic work and a few other occupations (mainly agricultural). This occurs in El Salvador, Guatemala, Honduras and Panama. 13 The 48-hour work week is established for live-out workers (Law no. 5.407/2015, Art. 13). 14 The 48-hour work week of eight hours daily is recognized for live-out workers. The workday for live-in workers is 10 hours per day, or 60-hour work weeks. 15 The 45-hour work week is recognized only for live-out workers. 16 The work week can be extended to 44 hours with prior consent of the parties. 17 According to Article 15 of Law 5407/2015, this provision refers to live-in workers.

Policies to formalize paid domestic work in Latin America and the Caribbean 21 decrease to one day every two weeks for live-out workers. Live-in workers in Chile have the longest weekly rest time: two days. With respect to vacation time established by law, only Peru defines a shorter period for domestic workers, 15 days, compared with 30 for other workers. In the other countries, the vacation period ranges from six days (Mexico) to 30 days (Brazil and Panama) annually, but those periods apply to all workers. Right to a minimum wage Of the countries analyzed, 17 have established a minimum wage for domestic workers (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Guyana, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Trinidad and Tobago, Uruguay and Venezuela). In most of the countries, this minimum wage is equal to that applicable to all workers or to workers of a similar skill level. Only in Costa Rica, Paraguay and Trinidad and Tobago is the minimum wage for domestic workers below that of other, similarly skilled workers. In terms of in-kind payment, the laws of Argentina, Bolivia, Brazil, Chile, Ecuador and Jamaica prohibit it. Colombia, Costa Rica, the Dominican Republic, Guatemala, Honduras, Mexico, Nicaragua and Uruguay have established that this form of payment may account for between 20 and 60 per cent of the salary, depending on the country. In El Salvador, Panama and Peru, the law recognizes this form of payment but establishes neither minimums nor maximums. In-kind payment is not permitted in Guyana except at the request of the worker and in the amount agreed upon by the parties. Due to the recent enactment of Law N 5.407, in Paraguay, the application of in-kind payment is confusing as the law states that this type of payment is mandatory but does not establish a minimum or a maximum. Right to social security As mentioned, employment in the domestic work sector may take several forms: parttime or full-time, for one or more employers, live-in or live-out. This reality makes it more difficult to guarantee domestic workers access to social security. In this context, some countries have made advances in defining flexible social security programmes. These differ among the countries, as discussed below. Most of the countries of the region make it mandatory to contribute to social security systems through general national systems. This is true of Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Guyana, Jamaica, Nicaragua, Panama, Paraguay, Peru, Trinidad and Tobago, Uruguay and Venezuela. El Salvador, Guatemala, Honduras and Mexico have special insurance systems. Contribution to these programmes is voluntary and tends to provide fewer benefits for domestic workers. In Central American countries that have implemented this type of system, including El Salvador and Honduras, coverage levels are quite low. This confirms that international experience has shown that voluntary coverage is ineffective (ILO

22 2016: 16). For example, in El Salvador in January 2013, coverage rates were just 18 per cent of the target established for that date (Velasco 2013: 7). In Guatemala, where the Special Protection Programme of Private Home Employees (PRECAPI) is mandatory but only applicable to Guatemala City, the Programme expected to have covered 10,000 domestic workers by 2012 but only reached 324 (Antezana 2014: 43). Most South American countries have implemented reforms to ensure that their internal laws reflect the principles established in Convention 189 although not all of those countries have ratified the Convention. In Central America, Costa Rica s legal system most closely upholds the principles of that Convention. Nicaragua, Panama and the Caribbean countries studied have also followed this trend, although to a lesser degree. TABLE 1. Latin America and the Caribbean (21 countries): Formal recognition of the rights of domestic workers, 2015 Working hours Right Conditions Countries Contract Minimum wage Social security The same as those of other workers (between 40 and 48 hours per week) No established hours. Rest periods of between 9 and 12 hours daily. Longer hours for live-in workers than for live-out workers Mandatory written contract Verbal contracts are permitted Minimum wage for domestic work or domestic work included in the general minimum wage No established minimum wage for domestic work In-kind payment of part of salary is permitted Mandatory registration Voluntary registration Special programme with fewer benefits Argentina, Bolivia a/, Colombia b/, Costa Rica, Peru, Guyana, Paraguay c/, Chile d/, Brazil, Trinidad and Tobago, Uruguay, Ecuador, Jamaica and Venezuela. Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Nicaragua and Panama. Bolivia, Chile and Colombia Argentina, Brazil, Chile, Costa Rica, Ecuador, Mexico, Paraguay and Bolivia e/ Colombia, Dominican Republic, El Salvador, Guatemala, Guyana, Honduras, Jamaica, Nicaragua, Panama, Peru, Trinidad and Tobago, Uruguay, Venezuela. Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Guyana, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Trinidad and Tobago, Uruguay, Venezuela. Dominican Republic, El Salvador, Honduras and Peru. Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru and Uruguay Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Guyana, Jamaica, Nicaragua, Panama, Paraguay, Peru, Trinidad and Tobago, Uruguay and Venezuela. El Salvador, Honduras and Mexico El Salvador, Guatemala, Honduras and Mexico Source: ILO, based on legislation of the countries. Notes: a/48 hours, 8 hours per day, is established for live-out workers. The workday for live-in workers is 10 hours per day, which means a 60-hour workweek (Law 2.450, Art. 11). b/ 8-hour workdays are established for live-out workers. 10-hour days are established for live-in workers (Ruling C-372 de

Policies to formalize paid domestic work in Latin America and the Caribbean 23 1998 of the Constitutional Court). c/ 48-hour workweeks are established for live-out workers (Law no. 5.407/2015, Art. 13). d/ 45-hour workweeks are recognized only for live-out workers. Live-in workers do not have a defined workweek although they do have a right to 12 hour rest periods daily (Law 20786, Art. 149). e/ Only mandatory when the employment relationship extends beyond one year (Law 2.450, Art. 3). Not surprisingly, however, advances vary not just by country, but also from one area to another, with access to social security lagging behind given the lack of social protection programmes that adequately respond to the types of employment (part-time or full-time), number of employers (one or more), and live-in or live-out status of workers. Overall, the main challenge countries face in harmonizing their legal framework with the rights set forth in Convention 189 and Recommendation 201 is to develop regulations based on the different modalities and combinations in which domestic work is performed, as Table 1 demonstrates. 2.4 Dialogue between the legislation that regulates domestic work and migration legislation: a top-priority issue As mentioned earlier, migrant workers account for a large share of domestic workers, playing a key role in the international division of labour. This situation has entailed a series of transformations within families, not only to enable women to become migrant workers who are not necessarily accompanied by their partners, but also to ensure that they can continue to oversee and undertake the care of family members even when they work and reside in another country. Since both paid and unpaid domestic work is mainly performed by women, complex arrangements have been created to allow them to continue to assume responsibility for this task in a dynamic social and economic context. In this scenario, global care chains have been developed, which are consolidated when a woman joins the labour force and hires a domestic worker to assume the domestic chores of her family. In turn, the domestic worker delegates the domestic tasks of her own nuclear family to another woman usually the mother, sister, oldest daughter, etc. In a global context, this arrangement results in the movement of women from different communities and countries as part of a complex dynamic. This is also how migratory corridors of global care chains are created. These become part of the international division of labour. Examples of these are Paraguayan domestic workers in Argentina; Nicaraguan workers in Costa Rica; Peruvian workers in Chile; Ecuadorian workers in Spain; and Mexican workers in the United States. Despite the close link between domestic work and migration evident in global care chains, this is not necessarily reflected in a dialogue between migration and labour law. For example, several countries grant work permits only for jobs that citizens do not manage to fill. These occupations are usually the worst paid and clearly respond to the gender division of labour, where male migrant workers are employed in construction or agriculture and women in domestic work.

24 ` ` The specialized incorporation of migrant workers in the care sector and specifically in household employment is closely linked to immigration law, which in several cases analyzed hinders the attainment of work permits in other sectors, when permits are not granted exclusively for that sector ( ) they also impede the standardization of university degrees or training certificates of the foreign population (Milano-Mijangos et al. 2012: 25). These realities usually are not considered in the legislation that regulates domestic work, where profound contradictions exist, particularly in terms of migration content, which violate the labour rights of domestic workers. For example, most countries still permit verbal contracts even though immigration law calls for written contracts in order for individuals to apply for a work permit and to rectify their immigration status (Milano- Mijangos et al. 2012: 32). Likewise, as mentioned earlier, domestic work may be performed for several employers at the same time. This reality is not considered in the immigration laws of the countries that require permanent employment with the same employer as a prerequisite for applying for a work permit (Milano-Mijangos et al. 2012: 33). Costa Rica is one example of this situation, where the law is clearly conceived for a single, permanent employer. By contrast, in the context of MERCOSUR, in 1997, Member States signed the Multilateral Social Security Agreement of the Southern Common Market and the Administrative Regulations for its due application. Through the agreement, MERCOSUR Member States recognize the same rights and responsibilities in terms of social security for migrant and national workers, This agreement, which is currently in effect and applied, enables any worker to accumulate the different periods of contributions made in any of the bloc countries with a view to accessing the right to retirement Moreover, a unified administrative system is established through which all workers can file claims and begin administrative procedures in any of the social security systems and shall have them considered within the established period, even when submitted to the corresponding institution of another Member State (Valiente 2010: 105). Given that Latin America and the Caribbean is a highly mobile region, these realities should be considered in policies designed to formalize domestic work in an effort to reflect the heterogeneity existing in the group of domestic workers.